HKSAR v. MIZANUR RAHMAN

HCMA 90/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 90 OF 2011

(ON APPEAL FROM KCCC 4471/2010)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  The Appellant was convicted of two charges by the Magistrate:

(1)   Possession for sale or for any purpose of trade or manufacture goods to which a forged trade mark was applied (Charge 1);

(2)   Establishing or joining business while being a person in respect of whom a removal order is in force (Charge 2).

2.  He was acquitted of another charge of selling goods to which a forged trade mark was applied (Charge 4).  He is appealing against the conviction of Charges 1 and 2.

The Prosecution Case

3.  The Appellant was subject of a removal order, but he was allowed bail to remain in Hong Kong pending decision on his torture claim.

4.  Customs officers were executing a search warrant at a flat on the 10/F of Alpha Building, Nathan Road.  Customs Officer 1 (PW1) saw the Appellant approached two tourists on Nathan Road, showing them a watch on his wrist and saying “Watch, Watch, Rolex”.  The tourists followed the Appellant into Alpha Building.  On 10/F of Alpha Building, Custom Officer 2 (PW2) saw the Appellant and the two tourists go into the flat and then came out.  The Appellant was holding some banknotes and the tourists were found to be in possession of three faked watches and a piece of paper with the Appellant’s name and mobile phone number. Another man was inside the flat, i.e. the co-defendant in the case (D2).  Over 100 items of faked watches and handbags were found inside the flat and they formed the subject matter of Charge 1.  PW2 asked the Appellant who sold the faked watches to the tourists and the Appellant said “Me”.

Defence case

5.  The Appellant had a clear record but did not give evidence.  The co-defendant pleaded guilty to Charges 2 and 3 testified that the Appellant was borrowing money from him and had nothing to do with the faked items.

Reasons of the Magistrate

6.  The Magistrate found the Appellant had made the verbal voluntarily and rejected allegation of violence by the Customs officers.  However, due to possible language problem, he placed no weight on the short answer “Me”. Hence, the Appellant was acquitted of Charge 4.

7.  As to Charges 1 and 2, the Magistrate commented that since the business was illegal, it must ipso facto be informal in that business records could not be found. 

8.  However, the Appellant was recruiting customers, bringing them to the place where watches were stored, provided the customers with a name card, and he went out of the flat with proceed of sale.  Those facts established that he was an active member involved in the conduct of the business.  Hence, he had joined in the business, albeit informal and illegal.

Grounds of Appeal

9.  The Notice of Appeal contained only the general ground of insufficiency of evidence. 

10.  The Appellant’s main complaint was the untruthfulness of the Customs officers.  He tried to give evidence which he had elected not to do so at the trial.  But during final submissions, the Appellant said he wanted to plead guilty to Charge 1. 

Discussions

11.  The appeal against Charge 2 turned on sufficiency of the evidence in supporting an irresistible inference of joining in the business. 

12.  Under s. 38AA of the Immigration Ordinance, (Cap. 115):

“Prohibition of taking up employment and establishing business, etc.

(1) A person –

(a) who, having landed in Hong Kong unlawfully, remains in Hong Kong without the authority of the Director under section 13; or

(b) in respect of whom a removal order or a deportation order is in force, must not take any employment, whether paid or unpaid, or establish or join in any business.

(2) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 3 years.”

13.  In HKSAR v Zhang DingXi (張定溪) HCMA 1187/2004, Deputy High Court Judge Barnes (as she then was) stated that looking at establishing joining the business together, one can see joining the business does not mean assisting in the operation of business, but joining in the business as partner of the operator.

14.  In HKSAR v Chen CaiLu (陳彩彔) HCMA 462/2007, the case concerning the establishing of business, Tong J considered the meaning of establishing the business and commented obiter that joining in a business might cover a wide range of daily routines but there must be consistency of the conduct.

15.  Looking at s. 38AA(1)(b), it is quite clear that “taking up any employment, whether paid or unpaid” is one limb of the offence, while “establishing or joining in any business” is another limb as the two verbs “establishing” and “joining in” share the same object “business”.  Hence, the two words should be construed ejusdem generis.  Establishing the business means setting it up on one’s own account, and joining in the business means joining in as a partner with a share of the profits. 

16.  Ms Cheng, for the Respondent, submitted the evidence shows the Appellant’s continuing involvement in the business: (1) there were goods in the flat available for future sales; (2) the Appellant had given his name and telephone number to the tourists; (3) he shared the proceeds.

17.  Alternatively, as there is no evidence to show either establishing the business or taking up employment, the Court should interpret “joining in the business” to include the acts of the Appellant.

18.  A business has certainly been established in the flat, but it begs the question of by whom.  Ms Cheng’s suggested interpretation would be correct if the words were say “otherwise dealing in the business”.

19.  On sharing of profits, there was no admission that the money found in the Appellant’s hands was the proceeds of sale.  The Magistrate rejected that he had sold the watches, hence limiting the direct evidence of his role to soliciting and ushering the customers.  Even if the money came from the proceeds, one could not say whether the Appellant was paid as an employee or whether it was a share of the profits.  Hence, I do not find an irresistible inference of joining in the business.

20.  Granted the late abandonment of the appeal against Charge 1, all the evidence including soliciting and ushering the customers to the flat, and possession of the piece of paper by the tourist would support an irresistible inference of joint possession of the goods inside in any case.

Conclusion

21.  In the event, the appeal against Charge 1 was dismissed, and the appeal against the Charge 2 was allowed and the sentence quashed.